07-002186N Cassandra Robles And Marlando Falconer, Parents And Natural Guardians, Cassandra Robles Individually And As Parent Of Mia Falconer And Marlando Falconer Individually And As Parent Of Mia Falconer vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, April 27, 2018.

Summary: Final Order resolving claim was compensable, health care providers complied with the notice provisions of the Plan, and making an award.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASSANDRA ROBLES AND MARLANDO )

FALCONER, PARENTS AND NATURAL )

GUARDIANS, CASSANDRA ROBLES )

INDIVIDUALLY AND AS PARENT OF )

MIA FALCONER AND MARLANDO )

FALCONER INDIVIDUALLY AND AS )

PARENT OF MIA FALCONER, )

)

Petitioners, )

)

vs. ) Case No. 07-2186N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

NORTH BROWARD HOSPITAL )

DISTRICT, d/b/a BROWARD GENERAL )

MEDICAL CENTER; MARGA FIGUEROA )

MARQUEZ M.D.; EDUARDO OTERO, )

M.D.; GALDINO SILVA-NETO, M.D.; )

)

)

)

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge William J. Kendrick, held

a hearing in the above-styled case on October 31, 2008, by video

teleconference, with sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioners: Julio C. Jaramillo, Esquire

Two Datran Center, Suite 1703

9130 South Dadeland Boulevard

Miami, Florida 33156

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

For Intervenor North Broward Hospital District:

Ronald A. Fitzgerald, Esquire

Conrad & Scherer

633 South Federal Highway

Fort Lauderdale, Florida 33301

For Intervenors Marga Figuero Marquez, M.D., Eduardo Otero,

M.D., Galdino Silva-Neto, M.D., Luciano Tanfulla, M.D., and

Pediatric Medical Group of Florida, Inc.:

Thomas C. Heath, Esquire

Heath & Carcioppolo, Chartered

888 Southeast Third Avenue, Suite 202

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUES

At issue is the amount and manner of payment of the

parental award, the reasonable expenses incurred in connection

with the filing of the claim, including reasonable attorney's

fees, and the amount owing for expenses previously incurred.

STATEMENT OF THE CASE

On May 14, 2007, Cassandra Robles and Marlando Falconer, as

parents and natural guardians of Mia Falconer, a minor, and

Cassandra Robles and Marlando Falconer, individually, filed a

petition with the Division of Administrative Hearings (DOAH) for

a determination that Petitioners' claim was not compensable

under the Florida Birth-Related Neurological Injury Compensation

Plan (Plan), and that the health care providers failed to comply

with the notice provisions of the Plan. Pertinent to the

pending issues, the petition included the following allegations:

Time and Place Injury Occurred

4. Baby Mia Falconer was born on May 18,

2002. Her injuries are not a birth-related

neurological injury as defined in Florida

Statutes 766.301 et seq.

Brief Statement of Facts and Circumstances

Surrounding the Injury and Giving Rise to

the Claim

5. The Claimants originally filed this

claim as a medical malpractice action in

Broward County Circuit Court, Case #04-

01353. However, that action was abated and

the Claimants were directed to file a NICA

Petition for determination as to whether or

not the facts, events and claim fall within

those contemplated by Florida Statutes

766.301 et seq. and whether the healthcare

providers had provided appropriate notice to

the Claimant as required under Florida law.

6. On May 18, 2002, MIA FALCONER was

delivered. Subsequent to delivery, she was

diagnosed with severe cortical and

subcortical encephalomalacia of the frontal

lobes, abnormalities in both parietal lobes,

ischemia/infraction with encephalomalacia,

fetal macrosomia and other abnormalities.

Her injuries are not a "birth-related

neurological injury" as defined in Florida

Statutes 766.302(2).

7. At no time was Claimant ever provided

appropriate Notice by a Participating

Physician or by anyone seeking coverage

under the NICA Plan. Claimant challenges

the validity of any Notice given to her at

any time.

* * *

WHEREFORE, Petitioners respectfully request

entry of an Administrative Order finding

that this claim is not compensable under

Florida Statutes 766.301 et. seq.

DOAH served the Florida Birth-Related Neurological Injury

Compensation Association (NICA) with a copy of the petition on

May 15, 2007, and on August 17, 2007, following a number of

extensions of time within which to do so, NICA gave notice that

it was of the view the claim was compensable, and requested that

a hearing be scheduled to resolve compensability. In the

interim, Intervenors' requests for leave to intervene were

granted.

Given the issues raised by the petition, a hearing was

scheduled for January 7 and 8, 2008, to address compensability

and notice, and leaving issues related to an award, if any, to

be addressed in a subsequent proceeding. § 766.309(4), Fla.

Stat. However, at Petitioners' request, the hearing was

continued on two occasions, and the hearing on compensability

and notice ultimately was held on August 5, 2008.

Shortly before hearing, the parties reached agreement on

the issue of compensability, and on August 1, 2008, filed an

Amendment to Joint Pre-Hearing Stipulation wherein they agreed

the claim was compensable (a "participating physician" (Winston

O. Bliss, M.D.) delivered obstetrical services at Mia's birth

and Mia suffered a "birth-related neurological injury"). Then

at hearing, the parties agreed the participating physicians and

hospital complied with the notice provisions of the Plan. That

agreement was documented by Order of August 5, 2008, as follows:

On August 5, 2008, a hearing was held to

address the issues of compensability and

notice. At the time, the parties confirmed

their stipulation, as set forth in their

Amendment to Joint Pre-Hearing Stipulation,

filed August 1, 2008, that the claim was

compensable, and further agreed that the

participating physicians and hospital

complied with the notice provisions of the

Florida Birth-Related Neurological Injury

Compensation Plan (Plan). Left to resolve

was the amount and manner of payment of an

award to the parents, the reasonable

expenses incurred in connection with the

filing of the claim, including reasonable

attorney's fees, and the amount owing for

expenses previously incurred. § 766.31(1),

Fla. Stat. Accordingly, consistent with the

pronouncements made at hearing, it is

ORDERED that the parties are accorded 30

days from the date of this order to resolve,

subject to approval by the administrative

law judge, the amount and manner of payment

of an award to the parents, the reasonable

expenses incurred in connection with the

filing of the claim, including reasonable

attorney's fees, and the amount owing for

expenses previously incurred. If not

resolved within such period, the parties

shall so advise the administrative law

judge, indicate their preference for a

hearing date(s) of October 1, 3, 7-10, 30,

or 31, 2008, and a hearing will be scheduled

to resolve such issues. Once resolved, a

final order will be entered resolving that

the claim is compensable, that the

participating physicians and hospital

complied with the notice provisions of the

Plan, and that makes an award consistent

with Section 766.31, Florida Statutes.

The parties were unable to resolve any issues related to an

award and by Notice of Hearing, dated September 9, 2008, a

hearing was scheduled for October 31, 2008, to resolve the

issues.

At hearing Petitioners offered the testimony of

Julio Jaramillo, and Petitioners' Exhibit 1 (a five-page

document titled "Timesheet") and Exhibit 2 (a two-page document

listing expenses (costs) claimed) were received into evidence. 1

No other witnesses were called, and no other exhibits were

offered.

The transcript of the hearing was filed November 26, 2008,

and the parties were accorded 10 days from that date to file

proposed orders. The parties elected to file such proposals and

they have been duly considered.

FINDINGS OF FACT

Stipulated facts regarding compensability and notice

1. Cassandra Robles and Marlando Falconer are the parents

and natural guardian of Mia Falconer. Mia was born May 18,

2002, at Broward General Medical Center, and suffered a "birth-

related neurological injury" during the course of labor,

delivery, or resuscitation in the immediate postdelivery period

in the hospital.

2. Obstetrical services were delivered at Mia's birth by

Winston O. Bliss, M.D., who, at all times material hereto was a

"participating physician" in the Plan.

3. The participating physicians and hospital complied with

the notice provisions of the Plan.

Findings related to the parental award and past expenses

4. At hearing, the parties stipulated that there were no

monies owing for past expenses, as they had been paid by

collateral sources. § 766.31(1)(a), Fla. Stat. The parties

further agreed that Petitioners receive a parental award of

$100,000.00, and that such award be payable to a "special needs"

trust to be created for such purpose. § 766.31(1)(b), Fla.

Stat. It was further agreed that once the "special needs" trust

was established, Petitioners would advise NICA of the

particulars and NICA would make payment of the $100,000.00 award

to the "special needs" trust.

The award provisions of the Plan relating

to attorney's fees and costs

5. Pertinent to this case, Section 766.31(1)(c), Florida

Statutes, provides for an award of attorney's fees and other

expenses, as follows:

(c) Reasonable expenses incurred in

connection with the filing of a claim under

ss. 766.301-766.316, including reasonable

attorney's fees, which shall be subject to

the approval and award of the administrative

law judge. In determining an award for

attorney's fees, the administrative law

judge shall consider the following factors:

1. The time and labor required, the novelty

and difficulty of the questions involved,

and the skill requisite to perform the legal

services properly.

2. The fee customarily charged in the

locality for similar legal services.

3. The time limitations imposed by the

claimant or the circumstances.

4. The nature and length of the

professional relationship with the claimant.

5. The experience, reputation, and ability

of the lawyer or lawyers performing

services.

6. The contingency or certainty of a fee.

The claim for attorney's fees

6. To calculate a reasonable attorney's fee, the first

step is to determine the number of hours reasonably expended

pursuing the claim. See Standard Guarantee Insurance Co. v.

Quanstrom , 555 So. 2d 828 (Fla. 1990); Florida Patient's

Compensation Fund v. Rowe , 472 So. 2d 1145 (Fla. 1985); Florida

Birth-Related Neurological Injury Compensation Association v.

Carreras , 633 So. 2d 1103 (Fla. 3d DCA 1994). Notably, "[u]nder

the 'hour-setting' portion of the lodestar computation, it is

important to distinguish between 'hours actually worked' versus

'hours reasonably expended'." Carreras , 633 So. 2d at 1110.

. . . "Hours actually worked" is not the

issue. The objective instead is for the

trier of fact

to determine the number of hours

reasonably expended in providing the

service. 'Reasonably expended' means the

time that ordinarily would be spent by

lawyers in the community to resolve this

particular type of dispute. It is not

necessarily the number of hours actually

expended by counsel in the case. Rather,

the court must consider the number of hours

that should reasonably have been expended in

that particular case. The court is not

required to accept the hours stated by

counsel.

In re Estate of Platt , 586 So. 2d 333-34

(emphasis in original). The trier of fact

must determine a reasonable time allowance

for the work performed-which allowance may

be less than the number of hours actually

worked. Such a reduction does not reflect a

judgment that the hours were not worked, but

instead reflects a determination that a fair

hourly allowance is lower than the time put

in.

Id. Moreover, only time incurred pursuing the claim is

compensable, not time incurred exploring civil remedies or

opportunities to opt out of the Plan through lack of notice or

otherwise. Carreras , 633 So. 2d at 1109. See also Braniff v.

Galen of Florida, Inc. , 669 So. 2d 1051, 1053 (Fla. 1st DCA

1995)("The presence or absence of notice will neither advance

nor defeat the claim of an eligible NICA claimant who has

decided to invoke the NICA remedy . . .; thus, there is no

reason to inquire whether proper notice was given to an

individual who has decided to proceed under NICA. Notice is

only relevant to the defendants' assertion of NICA exclusivity

where the individual attempts to invoke a civil remedy.").

Accord , O'Leary v. Florida Birth-Related Neurological Injury

Compensation Plan , 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("We

recognize that lack of notice does not affect a claimant's

ability to obtain compensation from the Plan."). Finally, a fee

award must be supported with expert testimony, and cannot be

based entirely on the testimony of the claimant's attorney.

Palmetto Federal Savings and Loan Association v. Day , 512 So. 2d

332 (Fla. 3d DCA 1987); Fitzgerald v. State of Florida , 756 So.

2d 110 (Fla. 2d DCA 1999). See Nants v. Griffin , 783 So. 2d

363, 366 (Fla. 5th DCA 2001)("To support a fee award, there must

be evidence detailing the services performed and expert

testimony as to the reasonableness of the fee . . . . Expert

testimony is required to determine both the reasonableness of

the hours and reasonable hour rate.").

7. To support the claim for attorney's fees, Petitioners

offered a "Timesheet," which reflects a claim for 55.9 hours

Petitioners' counsel, Julio Jaramillo and Charles Mustell, claim

they dedicated to the claim. (Petitioners' Exhibit 1).

Notably, the time sheet is not a business record, since

Mr. Jaramillo and Mr. Mustell did not, and do not in the

ordinary course of their practice, maintain time records.

Rather, the statement represents an effort to construct a time

record to support Petitioners' claim for fees, and provides a

summary of activities performed, by date, with an estimate of

time expended for each activity.

8. Where, as here, "attorneys have not kept

contemporaneous time records, it is permissible for a

reconstruction of time to be prepared." Brake v. Murphy , 736

So. 2d 745, 747 (Fla. 3d DCA 1999). However, the attorney must

present evidence of his services in "sufficient . . . detail to

allow a determination of whether each activity was reasonably

necessary and whether the time allocation for each was

reasonable." Id. at 747 (Emphasis omitted).

9. Here, from April 9, 2007, shortly before the petition

was filed (on May 14, 2007) until August 17, 2007, when NICA

responded to the petition and acknowledged the claim was

compensable, counsel claims 14.1 hours dedicated to the claim. 2

Thereafter, counsels' efforts were admittedly devoted to

avoiding the exclusive remedy provisions of the Plan, by

contesting compensability and notice. While Petitioners are

free to contest such matters, they may not, as discussed supra ,

look to NICA to underwrite such efforts. Consequently, at most,

counsel dedicated 14.1 hours to the pursuit of the claim,

together with an additional 5 hours counsel concedes would be

adequate to resolve issues related to the award. In all,

counsel are entitled to be compensated for 19.1 hours, as

reasonably expended. 3

10. The next consideration in establishing a reasonable

fee is the determination of the fee customarily charged in the

locality for similar legal services, when the fee basis is

hourly billing for time worked. Carreras , 633 So. 2d at 1108.

Here, counsel has requested, and NICA has agreed, that $300.00

per hour is reasonable. Therefore, counsel are awarded an

hourly rate of $300.00 without further discussion.

11. A reasonable fee under the methodology established by

Florida Patient's Compensation Fund v. Rowe , supra , and Florida

Birth-Related Neurological Injury Compensation Association v.

Carreras , supra , is determined by multiplying the hours

reasonably expended by the reasonable hourly rate. The results

produce the "lodestar figure" which, if appropriate, may be

adjusted because of the remaining factors contained in Section

766.31(1)(c), Florida Statutes. Applying such methodology to

the facts of this case produces a "lodestar figure" of $5,730.00

(19.1 hours x $300 per hour).

12. Upon consideration of the facts of this case, and the

remaining criteria established at Section 766.31(1)(c) 3-6,

Florida Statutes, there is no apparent basis or reason to adjust

the "lodestar figure." In this regard, it is observed that

there were no significant time limitations shown to have been

imposed by the claimants or the circumstances in this particular

case, and the nature and length of the professional relationship

with the claimants was likewise a neutral consideration. The

experience, reputation and ability of the lawyers who performed

the services has been considered in establishing the reasonable

hours and reasonable hourly rate and does not, in this case,

afford any additional basis to adjust the "lodestar figure."

Finally, although counsel were employed on a contingency fee

basis and stood to recover no fee if they proved unsuccessful in

pursuing the claim or, alternatively, in pursuing a malpractice

action, the contingency nature of the fee arrangement does not

warrant an adjustment of the "lodestar figure." Given the

nature of the claim, which was relatively straight-forward,

lacked any novel aspects, and was promptly accepted by NICA, the

risk of nonrecovery was not sufficient to warrant any

adjustments.

The claim for other expenses

13. Finally, Petitioners' counsel incurred certain

expenses for which they seek recovery. (Petitioners' Exhibit

2). Such costs total $21,363.54. Of those costs, NICA does not

object to the following expenses:

08/25/02 Sunlife Medical Records $ 46.75

09/08/03 Medical Records $ 727.16

10/21/03 Medical Records $ 212.00

11/19/03 X-Ray films $ 234.00

05/11/07 DOAH-filing fee $ 15.00

$1,234.91

Accordingly, such expenses, totaling $1,234.91, are awarded

without further discussion.

14. As for the balance of expenses claimed, and opposed by

NICA, the record is devoid of proof to support their recovery.

Notably, all discovery post-dated NICA's acceptance of the

claim, and was occasioned by Petitioners' contest of

compensability and notice, and there is no basis for an award of

an expert witness fee (for Drs. Eden and Fiascone) since they

were neither deposed nor testified at hearing, and there was no

showing as to the necessity for their consideration of the claim

or the reasonableness of their fee. Gray v. Bradbury , 668 So.

2d 296, 298 (Fla. 1st DCA 1996)("The prevailing party's burden,

at an evidentiary cost hearing, to recover an expert witness fee

is 'to present testimony concerning the necessity and

reasonableness of the fee.'"); Powell v. Barnes , 629 So. 2d 185

(Fla. 5th DCA 1993)(recognizing that evidence to support an award

for expert witness fees must come from witnesses qualified in the

areas concerned); Gray v. Bradbury , 668 So. 2d at 298 (Testimony

of "a trial attorney and an insurance casualty claim manager, who

were not shown to have proficiency in the various fields of

expertise at issue (ranging from accident reconstruction to

neurosurgery)," was not competent to support an award for expert

witness fees.). Moreover, there is no basis for an award of

legal fees (for Mr. Suarez) to set up a special needs trust, as

there was no showing such expense was reasonably associated with

the pursuit of the claim, or any evidence offered to demonstrate

any activity he took, or proposed to take, was reasonably

necessary or that the fee charged was reasonable. Brake v.

Murphy , supra . Finally, the remaining items were either not

explicated or are considered overhead, and not taxable.

Department of Transportation v. Skidmore , 720 So. 2d 1125 (Fla.

4th DCA 1998)(recognizing that postage, long distance calls, fax

transmissions, delivery service, and computer research are

overhead and not properly taxable as costs).

CONCLUSIONS OF LAW

Jurisdiction

15. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. § 766.301, et seq. , Fla. Stat.

Compensability and award

16. In resolving whether a claim is covered by the Plan,

the administrative law judge must make the following

determination based upon the available evidence:

(a) Whether the injury claimed is a

birth-related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth-related

neurological injury as defined in s.

766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

administrative law judge concludes that the "infant has

sustained a birth-related neurological injury and that

obstetrical services were delivered by a participating physician

at the birth." § 766.31(1), Fla. Stat.

17. "Birth-related neurological injury" is defined by

Section 766.302(2), Florida Statutes, to mean:

. . . injury to the brain or spinal cord of

a live infant weighing at least 2,500 grams

for a single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate

postdelivery period in a hospital, which

renders the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

18. In this case, it has been established that the

physician who provided obstetrical services at Mia's birth was a

"participating physician," and that Mia suffered a "birth-

related neurological injury." Consequently, Mia qualifies for

coverage under the Plan, and Petitioners are entitled to an

award of compensation. §§ 766.309 and 766.31, Fla. Stat. Here,

for reasons noted in the Findings of Fact, it has been resolved

that Petitioners receive a parental award of $100,000.00,

payable to a "special needs" trust; an award of attorney's fees

in the sum of $5,730.00, and expenses (costs) in the sum of

$1,234.91; and that no monies are owing for past expenses.

19. When, as here, the administrative law judge determines

the claim is compensable, he is required to make an award

pursuant to Section 766.31, Florida Statutes, and to cause a

copy of the award to be sent by registered or certified mail to

each person served with a copy of the petition under Section

Such order constitutes final agency action subject to appellate

court review. § 766.311(1), Fla. Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Cassandra Robles and Marlando Falconer, as parents and natural

guardians of Mia Falconer, a minor, and Cassandra Robles and

Marlando Falconer, individually, be and the same is hereby

approved.

It is FURTHER ORDERED that the hospital and the

participating physicians complied with the notice provisions of

the Plan.

It is FURTHER ORDERED that the following benefits are

awarded:

1. Since no monies are owing for past expenses, no award

is made for expenses previously incurred. § 766.31(1)(a), Fla.

Stat. Respondent shall pay future expenses as incurred.

§ 766.31(2), Fla. Stat.

2. Cassandra Robles and Marlando Falconer, as the parents

of Mia are awarded $100,000.00, to be paid in lump sum to a

"special needs" trust. § 766.31(1)(b), Fla. Stat.

3. Petitioners are awarded $6,964.91 for attorney's fees

and other expenses incurred in connection with the filing of the

claim. § 766.31(1)(c), Fla. Stat.

It is FURTHER ORDERED that pursuant to Section 766.312,

Florida Statutes, jurisdiction is reserved to resolve any

disputes, should they arise, regarding the parties' compliance

with the terms of this Final Order.

DONE AND ORDERED this 16th day of December, 2008, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of December, 2008.

ENDNOTES

1/ The Petitioners' Exhibits 1 and 2 are attached to the

transcript of hearing.

2/ The time sheet also contains an entry for March 18, 2007,

for .2 hours. However, that entry was not adequately explained

and is disallowed.

3/ Although Petitioners did not present an expert witness to

offer testimony regarding the reasonableness of the hours or

reasonable hourly rate, NICA agreed 19.1 hours was reasonable,

as was an hourly rate of $300.00. (Respondent's proposed final

order, paragraphs 5-9).

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7005 1820 0002 9840 7564)

Charles Mustell, Esquire

Mustell & Borrow

4100 Northeast 2nd Avenue, Suite 202

Miami, Florida 33137

(Certified Mail No. 7005 1820 0002 9840 7571)

Ronald A. Fitzgerald, Esquire

Conrad & Scherer

633 South Federal Highway

Fort Lauderdale, Florida 33301

(Certified Mail No. 7005 1820 0002 9840 7588)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7005 1820 0002 9840 7595)

Robert J. Cousins, Esquire

Stephens Lynn Klein

Lacava Hoffman & Puya, P.A.

Las Olas Place- Suite 800

301 East Las Olas Boulevard

Fort Lauderdale, Florida 33301

(Certified Mail No. 7005 1820 0002 9840 7601)

Julio C. Jaramillo, Esquire

Two Datran Center, Suite 1703

9130 South Dadeland Boulevard

Miami, Florida 33156

(Certified Mail No. 7005 1820 0002 9840 7618)

Thomas C. Heath, Esquire

Heath & Carcioppolo, Chartered

888 Southeast Third Avenue, Suite 202

Fort Lauderdale, Florida 33316

(Certified Mail No. 7005 1820 0002 9840 7625)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7005 1820 0002 9840 7632)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk of

the Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the appropriate District Court

of Appeal. See Section 766.311, Florida Statutes, and Florida

Birth-Related Neurological Injury Compensation Association v.

Carreras , 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.